The gift that keeps on giving-autonomy, investor protection and the termination of intra-EU bilateral investment treaties

On 29 August 2020, the Agreement for the termination of Bilateral Investmant Treaties (BITs) between 23 Member States entered into forece. This is a special agreement between Memeber States in the meaning of art. 273 TFEU. It did not come as a surprise. In the aftermath of the judgment in Achmea, Member States had already declared their intention to terminate their intra-EU BITs on the basis that their arbitration cluses were contray to EU law. The plurilateral Termination Agreement (TA) does just that. In doing so, however, it raises a number of legal questions with implications not only for the ralationship between international arbitration and EU law but also for EU constitutional law.